Opinion
G053293
09-28-2017
THE PEOPLE, Plaintiff and Respondent, v. JONNA LYNN JOHNSON, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15HF0586) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed as modified. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jonna Lynn Johnson was placed on probation after a jury convicted her of robbery. On appeal, her primary contention is that the prosecutor committed prejudicial misconduct in closing argument by disparaging the defense. Although we reject that claim, we agree with Johnson the judgment must be modified to correct two sentencing errors. In all other respects, we affirm.
FACTS
The trial in this case hinged on the credibility of the victim Liza Granse. As the prosecutor admitted in her opening argument, Granse "has a drug problem", "likely deals drugs" and "is a criminal in her own right." Indeed, the evidence at trial showed Granse has used stolen identification cards to illegally procure prescription medications for herself and others. It was also clear from the record that, at the time of trial, Granse was in custody on an unrelated case and refused to testify until she was given immunity. Despite all this, the prosecutor contended Granse was telling the truth about what happened to her on June 1, 2015.
Granse testified that around six o'clock that evening, she arrived at Leisure World in Laguna Woods to pick up her friend Rebecca Garren. They had made plans to go out and celebrate their birthdays that night, and when Granse phoned at the gate, Garren told her to meet her at a cul-de-sac near her residence. Unbeknownst to Granse, Garren was also in contact with defendant Johnson and codefendant David Culross during this time. Granse knew the defendants, and like Garren, she considered them her friends. However, judging by how things transpired, the feeling was not mutual.
Upon pulling into the cul-de-sac, Granse saw the defendants standing near Johnson's Toyota Camry, which was parked in Garren's parking spot on the side of the street. When Granse attempted to make a U-turn in the cul-de-sac, defendants jumped in the Camry, and Johnson quickly maneuvered the vehicle so as to block Granse's egress. Having hemmed Granse into the cul-de-sac, defendants exited the Camry and approached her.
Culross reached into Granse's car, removed the keys from the ignition and asked, "Where's our shit." He was very angry and threatened to kill Granse. Meanwhile, Johnson entered the backseat of Granse's car and started rummaging through her belongings. Granse called 911 and attempted to report what was going on. On a tape of the call she can be heard arguing with Culross and referring to Johnson as a "fucking bitch." However, defendants beat her about the head and broke her phone in half, ending the call. They then got back in the Camry and drove away with Granse's Prada purse and the keys to her car. Garren left with them as they made their getaway.
The prosecution theorized Garren was acting in cahoots with the defendants and lured Granse to her residence to facilitate the robbery, but Garren was not tried with the defendants. --------
There were no independent witnesses to the robbery. After the defendants fled the scene, Granse contacted a resident in the area and used his phone to call 911 again. During this second call to the police, Granse identified the defendants by name and provided a description of them and their car.
Within minutes, sheriff's deputies arrived on the scene and found Granse's car located in the middle of the cul-de-sac. Granse's belongings were strewn throughout the vehicle, and when she spoke to the deputies, she was shaking, teary-eyed and visibly upset. Her face was red and starting to swell, and she had a chipped tooth.
While Granse was being interviewed, Sheriff's Deputy Peter Ada spotted Johnson driving her Camry in the area with Garren in her front passenger seat. Ada followed the Camry as it entered Leisure World. He then lost sight of the vehicle momentarily before finding it uninhabited near one of the community's laundry rooms. Ada entered the laundry room to find Johnson and Garren sitting on a bench. Underneath the bench Ada found Granse's car keys, and outside in Johnson's Camry he found the other half of Granse's cell phone. Ada also noticed Garren was holding a brown purse. The purse contained a prescription bottle with Garren's name on it, and a receipt for the prescription that was in her name.
Later that night, the police found Culross behind a drug store in Laguna Hills. A canine search of that area led to the discovery of a Prada purse that was covered by tree branches and concealed from public view.
At trial, Johnson's attorney cross-examined Granse extensively about the circumstances of the robbery. At several points in the questioning, he asked Granse if Johnson accelerated her car quickly and then came to a "screeching halt" when she trapped Granse's car into the cul-de-sac. Granse answered those questions in the affirmative, and in closing argument, Johnson's attorney brought this up in an attempt to discredit her version of events. He said, "We hear about . . . [Johnson's car] driving at [Granse] at a high rate of speed [and] coming to a screeching halt." He asserted that story did not jibe with the physical evidence because there were no tire marks on the street near Granse's car.
During the trial, Johnson's attorney also questioned Deputy Ada about the brown purse Garren was holding when he found her in the laundry room. On cross-examination, he asked Ada if the purse belonged to Granse, and Ada said he did not think so because it contained various items that had Garren's name on them.
Another issue Johnson's attorney brought up was the time at which Granse arrived at Leisure World to pick up Garren. During closing argument, he pointed out that while Granse testified she arrived there around 6:00 p.m., she sent a text to Garren at 5:30 p.m. telling her, "'I'm here.'" Speaking to this discrepancy, Johnson's attorney insinuated Granse might have been up to something nefarious before encountering the defendants. He told the jury, "So, for half an hour [before the encounter] Miss Granse is inside Leisure World . . . . We don't know what she's doing."
In her rebuttal argument, the prosecutor addressed all three of these issues - the lack of tire marks at the scene, the ownership of the brown purse and the timing of Granse's arrival at Leisure World. This is how her argument played out:
"[THE PROSECUTOR]: Now, let's talk specifically about the different closing arguments. [Johnson's attorney] talked about [his client's] car coming to a screeching halt [before the robbery]. Go back and listen to the testimony. Those are his questions to Liza Granse. [']Screeching halt['] are his words when he's leading her into the questions. Not asking her what happened. [']The car came screeching to a halt,['] those aren't her words. [¶] He's asking, [']the car came to a screeching halt, right[?'], because he knows the agenda.
"[CULROSS' ATTORNEY]: Objection, [Y]our Honor, impugns the defense. . . .
"THE COURT: Overruled
"[THE PROSECUTOR]: [Johnson's attorney] knows in his closing, he knows the agenda. He knows what he's going to lead her to say. We can see that in other witnesses, too. I point this out, they are doing their job, but I hope you can see through what's going on here. [¶] When [Johnson's attorney] questioned Officer Ada, and he said, 'oh, and Rebecca Garren's purse, you determined that was [Granse's] right?' And the officer goes, 'no, that was Rebecca Garren's purse.'
"[JOHNSON'S ATTORNEY]: Objection, misstates the testimony.
"[CULROSS' ATTORNEY]: Also, impugns the defense, [Y]our Honor.
"THE COURT: Overruled.
"[THE PROSECUTOR]: So, [Ada] said that was Rebecca Garren's [purse]. What was going on there is that they [were] trying to exploit inaccuracies in the testimony. Officers are professional
"[CULROSS' ATTORNEY]: Objection, [Y]our Honor. This impugns the defense. This is prosecutorial misconduct.
"THE COURT: Overruled.
"[THE PROSECUTOR]: They know exactly whose purse it is. They are asking leading questions because they have an agenda for their closing argument.
"[CULROSS' ATTORNEY]: Objection, misstates what cross-examination is. Impugns the defense. Prosecutorial misconduct.
"THE COURT: Overruled.
"[THE PROSECUTOR]: I'll ask for a hearing on that after the trial, [Y]our Honor. [¶] They know what their closing argument is going to be as they start the case. So, they try to make little things that they can exploit in the closing. [¶] Let's talk about the . . . timing issue on the text. Miss Granse is coming from an hour and a half away. Now, nobody asked any questions about the timing. That's pure speculation as to what happened, and . . . where she [was] when she [was] texting [Garren she was] [']here.['] [¶] . . . [¶] . . . No questions are asked about that. Talk about leaving wiggle room for your closing argument.
"[CULROSS' ATTORNEY]: Objection, [Y]our Honor, again, it impugns the [d]efense.
"THE COURT: Overruled.
"[THE PROSECUTOR]: Talk about leaving wiggle room."
DISCUSSION
Prosecutorial Misconduct
Johnson contends the prosecutor's rebuttal argument was improper for two reasons. First, it implied it was inappropriate for defense counsel to ask leading questions on cross-examination and fail to ask other questions. And second, the prosecutor's reference to the defense having an "agenda" implied defense counsel was trying to deceive the jury and that the prosecutor was aware of facts about the case and the integrity of defense counsel to which the jury was not privy. We do not believe the prosecutor's remarks were improper.
The law is clear. "It is misconduct when a prosecutor in closing argument 'denigrat[es] counsel instead of the evidence. Personal attacks on opposing counsel are improper and irrelevant to the issues.' [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 753.) "Nevertheless, the prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account. [Citations.]" (People v. Bemore (2000) 22 Cal.4th 809, 846.) Thus, it "is not misconduct for a prosecutor to argue that the defense is attempting to confuse the jury" (People v. Kennedy (2005) 36 Cal.4th 595, 626, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459), or to remind the jury "it should not be distracted from the relevant evidence" (People v. Gionis (1995) 9 Cal.4th 1196, 1218).
"In addressing a claim of prosecutorial misconduct that is based on the denigration of opposing counsel, we view the prosecutor's comments in relation to the remarks of defense counsel, and inquire whether the former constitutes a fair response to the latter. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 978, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Ultimately, we must decide "'"whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."' [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 284.) "In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]" (People v. Frye, supra, 18 Cal.4th at p. 970.) Moreover, even if misconduct occurred, reversal is not required unless it is reasonably probable the defendant would have fared better absent the impropriety. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
Here, the prosecutor was wholly within her rights in pointing out that Granse's testimony about Johnson's car coming to a "screeching halt" was elicited in response to leading questions from Johnson's attorney. The fact defense counsel pointedly led Granse in this field of inquiry is certainly something the jury could take into account in deciding the case. Similarly, there was nothing wrong with the prosecutor pointing out that it was defense counsel, not Deputy Ada, who suggested the purse in Garren's possession may have been the purse that was taken from Granse. This was an entirely accurate recitation of the evidentiary record. The question is, did the prosecutor go too far by claiming these questions were part of an "agenda"?
Viewing the prosecutor's argument in context, we think not. Rather, it appears the prosecutor was simply trying to point out that by posing certain questions on cross-examination, defense counsel was trying to elicit testimony that would be consistent with his overall trial strategy. There was nothing improper about the prosecutor doing this. Indeed, it is common knowledge that attorneys are advocates whose job it is to elicit favorable testimony and lay the foundation for arguments they think will be persuasive to the jury. Moreover, the prosecutor's remarks were made in direct response to defense counsel's questions and closing argument; they were not derived from personal experience or from information outside the record. We therefore conclude the prosecutor's assertion that defense counsel framed his questions to facilitate his closing argument as part of a preconceived agenda was not misconduct. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1154, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22 [no misconduct where prosecutor described defense counsel's closing argument "as a 'lawyer's game'"]; People v. Medina (1995) 11 Cal.4th 694, 759 [no misconduct where prosecutor told the jurors that defense counsel was "'try[ing] to get you to buy something'"]; People v. Cummings (1993) 4 Cal.4th 1233, 1303, overruled on other grounds in People v. Merritt (2017) 2 Cal.5th 819, 831 [no misconduct where prosecutor argued that a lawyer as persuasive as defense counsel "'could maybe get [a witness] to say almost anything'"]; People v. Pinholster (1992) 1 Cal.4th 865, 948, disapproved on other grounds in People v. Williams, supra, 49 Cal.4th at p. 459 [no misconduct where prosecutor accused a witness of failing to follow the defense "'script'"].)
For the same reason, it was not improper for the prosecutor to characterize defense counsel's failure to ask additional questions about the timing of Granse's arrival at Leisure world as an attempt by the defense to leave "wiggle room" for closing argument. Again, pointing out that an attorney has tried his or her case in a manner that gives them the opportunity to persuade the jury is not inherently deceptive or unfair. As the prosecutor admitted in her closing argument, it merely signals the attorney was doing his or her job. While it is certainly true that the word "agenda" and the term "wiggle room" can sometimes have a negative connotation, we do not believe their use was objectionable in this case.
Nor do we believe it is reasonably probable Johnson would have obtained a more favorable result at trial absent the complained-of remarks. In arguing otherwise, Johnson describes Granse as "a person of questionable integrity" and claims the evidence against her was "not strong." However, Granse's testimony was corroborated by her 911 calls and the injuries and demeanor she exhibited in the aftermath of the incident. And shortly after the robbery, defendants were found in constructive possession of half of Granse's cell phone, as well as other items that were taken from her car. Under these circumstances, the alleged prosecutorial misconduct was manifestly harmless.
Sentencing
At sentencing, the trial court placed Johnson on probation subject to various terms and conditions. We agree with the parties that her sentence is flawed in two respects. First, it is undisputed the trial court erred by requiring Johnson to pay the costs of her probation as a condition of probation. (People v. Benner (2010) 185 Cal.App.4th 791, 797.) The appropriate remedy is to strike this requirement from the probation order and simply make it a part of the judgment in the case. (Ibid.)
Second, the parties agree the trial clerk's minute order of the sentencing hearing does not accurately reflect the court's restitution order. While the court ordered Johnson to pay restitution "in an amount determined by the court and as directed by the probation department," the minute order states Johnson must pay restitution "in the amount as determined and directed by the probation department." As the court's oral pronouncement of sentence prevails over the clerk's minutes, we will modify the judgment to reflect that pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471-472.)
DISPOSITION
The order requiring Johnson to pay her probation costs is stricken as a condition of her probation but affirmed as a separate aspect of the judgment. In addition, the minute order of the sentencing hearing is modified to reflect Johnson shall pay restitution in the amount determined by the trial court and as directed by the probation department. In all other respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.